# Tadaknath & Ors v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 3 ILRA 784
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-15
- **Case number:** Application u/s 482 No. 41169 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tadaknath-ors-v-state-of-u-p-anr-opp-parties-49837
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 190,202,216, 218 &
228-Addition or subtraction of offencesPermissible only by trial court at time of
framing charge-Magistrate cannot add or
subtract offences at stage of summoning in
case based on police report-Proper stage is
framing of charge by trial court-In cases
based on private complaints, Magistrate has
power to add or subtract sections after
conducting inquiry under Sections 190/202
Cr.P.C.-Criminal Procedure Code, 1973-Case
based on police report vs complaint caseSeparate procedures prescribed-Cannot be
overlapped or clubbed together-Order of
Magistrate
summoning
accused
under
sections
not
included
in
chargesheetUnsustainable and liable to be set aside.
Application dismissed. (E-9)
List of Cases cited:

St. of Guj. Vs Girish Radhakrishnan Varde AIR
2014 Supreme Court 620.

## Text

784 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution has to adduce evidence to
indicate that one or more persons had acted
in concert and in such an event, if rape had
been committed by even one, all the
accused will be guilty irrespective of the
fact that victim had been raped by one or
more of them. In other words this provision
embodies a principle of joint liability and
the essence of that liability is the existence
of
common
intention
that
common
intention presupposes prior concert which
may be determined from the conduct of
offenders revealed during the course of
action. In such cases, there must be
criminal sharing, marking out a certain
measure of jointness in the commission
of offence. The term "person" used in the
Section should not be contrued in a
narrow sense. Section 11 I.P.C. defines
''person' as it includes any company or
association or body of persons whether
incorporated or not. The word "person" is
also defined in the Shorter Oxford
English Dictionary in two ways: firstly, it
is defined as "an individual human being"
or "a man, woman, or child"; and,
secondly, as "the living body of a human
being". As such, a women can not commit
the offense of rape but if she facilitated
the act of rape with a group of people
then she may be prosecuted for Gang
Rape in view of the amended provisions.
Unlike man, a woman can also be held
guilty of sexual offences. A woman can
also be held guilty of gang rape if she has
facilitated the act of rape with a group of
person.

12. Keeping in view of the aforesaid
facts and law laid down by the Apex Court,
I find no scope for interference in the
impugned order passed by the trial court at
this stage. The application has no force
and is accordingly dismissed.
----------
(2023) 3 ILRA 784
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 41169 of 2022

Tadaknath & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicants:
Ms. Jigyasa Singh

Counsel for the Opp. Parties:
G.A.
Criminal Law - Criminal Procedure Code,
1973 - Sections 190,202,216, 218 &
228-Addition or subtraction of offencesPermissible only by trial court at time of
framing charge-Magistrate cannot add or
subtract offences at stage of summoning in
case based on police report-Proper stage is
framing of charge by trial court-In cases
based on private complaints, Magistrate has
power to add or subtract sections after
conducting inquiry under Sections 190/202
Cr.P.C.-Criminal Procedure Code, 1973-Case
based on police report vs complaint caseSeparate procedures prescribed-Cannot be
overlapped or clubbed together-Order of
Magistrate
summoning
accused
under
sections
not
included
in
chargesheetUnsustainable and liable to be set aside.
Application dismissed. (E-9)
List of Cases cited:

St. of Guj. Vs Girish Radhakrishnan Varde AIR
2014 Supreme Court 620.

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)
3 All. Tadaknath & Ors. Vs. State of U.P. & Anr.
785

1. Learned counsel for the applicants
is permitted to make necessary correction
in the memo of the application during the
course of the day.

2. The case is taken up in the revised
call.

3. Heard Ms. Jigyasa Singh, learned
counsel for the applicant, Mr. Amit Singh
Chauhan, learned AGA for the State and
perused the records.

4. This application under Section 482
Cr.P.C. has been filed to quash the order
passed by learned Sessions Court, BhadohiGyanpur dated 06.06.2019 in Criminal
Revision
No.
106 of
2018
(Manju
Srivastava Vs. State of U.P. and others) as
well as summoning order dated 18.10.2022
passed in protest petition by Judicial
Magistrate-II, Bhadohi, Gyanpur in Case
Crime No. 0125 of 2016, Case No. 5673 of
2016 (State Vs. Tadaknath and others),
under sections 302, 427, 447 of Indian
Penal Code, Police Station Koirauna,
District Bhadohi and the entire criminal
proceeding in the aforesaid case crime.

5. This Court without issuing notice
to opposite party no. 2, is deciding the issue
on purely legal questions in the present
matter.

6. The fact of the case is that the
opposite party no. 2 has lodged an FIR
against the applicants for the offence under
section 302, 323, 504, 506, 427 and 447
IPC. After investigation charge sheet has
been submitted on 20.09.2016 for the
offence under section 323, 504, 506 IPC.
Being aggrieved by the charge sheet the
opposite party no. 2 filed protest petition as
Case No. 5673 of 2016 (Sate Vs. Tadaknath
and
others)
before
the
concerned
Magistrate on 26.10.2016 and the same was
opposed by the applicants. The aforesaid
petition was dismissed by the learned
Judicial Magistrate-II, Bhadohi-Gyanpur
vide order dated 02.11.2018, against which
the opposite party no. 2 filed revision
before the concerned court as Criminal
Revision
No.
106 of
2018
(Manju
Srivastava Vs. State and others). The
aforesaid criminal revision was allowed by
the learned Sessions Judge, BhadohiGyanpur vide order dated 06.06.2019 and
the matter was remanded back to lower
court for reconsideration, therefore, the
matter was reheard by the concerned
Magistrate and vide the order dated
18.10.2022
the
protest
petition
was
allowed, summoning the applicants under
sections 302, 427 and 447 of Indian Penal
Code.

7. Learned counsel for the applicants
submits that the Magisrate cannot add or
subtract any offence other than the offence
for which charge sheet has been filed. The
addition or subtraction of any offence is not
permissible at the stage of summoning and
it is permissible by the trial court only at
the time of framing charge. In support of
her argument she has relied upon the
judgment of Hon'ble Apex Court in Case of
State of Gujrat Vs. Girish Radhakrishnan
Varde AIR 2014 Supreme Court 620. The
relevant portion of the said judgment of the
Apex Court reads as follows:-

"14. The question, therefore, emerges
as
to
whether
the
complainant/informant/prosecution would
be precluded from seeking a remedy if the
investigating authorities have failed in their
duty by not including all the sections of
IPC on which offence can be held to have
been made out in spite of the facts
disclosed in the FIR. The answer obviously
786 INDIAN LAW REPORTS ALLAHABAD SERIES
has to be in the negative as the prosecution
cannot be allowed to suffer prejudice by
ignoring exclusion of the sections which
constitute the offence if the investigating
authorities for any reason whatsoever have
failed to include all the offence into the
chargesheet based on the FIR on which
investigation had been conducted. But then
a further question arises as to whether this
lacunae can be allowed to be filled in by
the magistrate before whom the matter
comes up for taking cognizance after
submission of the chargesheet and as
already stated, the magistrate in a case
which is based on a police report cannot
add or substract sections at the time of
taking cognizance as the same would be
permissible by the trial court only at the
time of framing of charge under section
216, 218 or under section 228 of the
Cr.P.C. as the case may be which means
that after submission of the chargesheet it
will be open for the prosecution to contend
before the appropriate trial court at the
stage of framing of charge to establish that
on the given state of facts the appropriate
sections which according to the prosecution
should be framed can be allowed to be
framed. Simultaneously, the accused also
has the liberty at this stage to submit
whether the charge under a particular
provision should be framed or not and this
is the appropriate forum in a case based
on police report to determine whether the
charge can be framed and a particular
section
can
be
added
or
removed
depending upon the material collected
during investigation as also the facts
disclosed in the FIR and the chargesheet.
15. In the alternative, if a case is based on
a complaint lodged before the magistrate
under Section 190 or 202 Cr.P.C., the
magistrate has been conferred with full
authority and jurisdiction to conduct an
enquiry into the complaint and thereafter
arrive at a conclusion whether cognizance
is fit to be taken on the basis of the sections
mentioned in the complaint or further
sections were to be added or substracted.
The Cr.P.C. has clearly engrafted the two
channels delineating the powers of the
magistrate to conduct an enquiry in a
complaint case and police investigation
based on the basis of a case registered at a
police station where the investigating
authorities
of
the
police
conducts
investigation under Chapter XII and there
is absolutely no ambiguity in regard to
these procedures.

16. In spite of this unambiguous
course of action to be adopted in a case
based on police report under Chapter XII
and a magisterial complaint under Chapter
XIV and XV, when it comes to application
of the provisions of the Cr.P.C. in a given
case, the affected parties appear to be
bogged down often into a confused state of
affairs as it has happened in the instant
matter since the magisterial powers which
is to deal with a case based on a complaint
before the magistrate and the police powers
based on a police report/FIR has been
allowed to overlap and the two separate
course of actions are sought to be clubbed
which is not the correct procedure as it is
not in consonance with the provisions of
the Cr.P.C. The affected parties have to
apprise themselves that if a case is
registered under Section 154 Cr.P.C. by the
police
based
on
the
FIR
and
the
chargesheet
is
submitted
after
investigation, obviously the correct stage as
to which sections would apply on the basis
of the FIR and the material collected
during investigation culminating into the
chargesheet, would be determined only at
the time framing of charge before the
appropriate trial court. In the alternative, if
the case arises out of a complaint lodged
before the Magistrate, then the procedure
3 All. Tadaknath & Ors. Vs. State of U.P. & Anr.
787
laid down under Sections 190 and 200 of
the Cr. P.C. clearly shall have to be
followed.

17. Since the instant case is based on
the FIR lodged before the police, the
correct stage for addition or substraction of
the Sections will have to be determined at
the time of framing of charge. But the
learned single Judge of the High Court in
the impugned judgment and order has not
assigned reasons with accuracy and clarity
for doing so and has made a casual
observation by recording that the Trial
Court at the appropriate stage will have the
power to determine as to which provision is
to be applied before the matter is finally
sent for trial. The fall out of the Order of
the High Court is that the prosecution
represented by the appellant -State of
Gujarat might be rendered remedy less as
setting aside of the order of the Magistrate
is likely to give rise to a situation where the
prosecution would be left with no remedy
for rectification or appreciation of the plea
as to whether inclusion or exclusion of
additional charges could be permitted. In
fact, while upholding the order of the
learned Additional District & Sessions
Judge,
the
High
Court
has
further
overlooked the fact that the Additional
District & Sessions Judge before whom
revision was filed against the order of the
Chief Judicial Magistrate, could have
allowed the revision on the ground of
erroneous exercise of jurisdiction by the
Chief Judicial Magistrate who permitted to
add
three
more
Sections
into
the
chargesheet. But the Additional District &
Sessions Judge instead of doing so has
straightway quashed the order passed by
the Magistrate instead of confining itself to
consideration of the question regarding
error of jurisdiction and laying down the
correct course to be adopted by the
magistrate. In fact, the correct course of
action should have been laid down by the
High Court as also the learned Additional
District & Sessions Judge by permitting the
appellant - State of Gujarat to raise the
question of addition of charges at the time
of framing of charge under Section 228 of
the Cr. P.C. and should not have passed a
blanket order setting aside the order of the
Magistrate without laying down the correct
course of action to be adopted by the
affected parties with the result that three
orders came to be passed by the Chief
Judicial Magistrate, Additional District &
Sessions Judge and the learned Single
Judge of the High Court, yet it could not
resolve the controversy by highlighting the
appropriate course of action to be adopted
by the prosecution-State of Gujarat as also
the magistrate which permitted addition of
sections after submission of chargesheet
missing out that the matter did not arise out
of a complaint case lodged before the
magistrate but a case which arose out of a
police report/FIR in a Police Station."

8. Learned AGA could not dispute the
aforesaid legal position that the concerned
Magistrate cannot entertain the protest
petition and summon the applicants under
sections in which the charge sheet has not
been submitted.

9. In view of the above the
summoning order dated 18.10.2022 passed
in protest petition by Judicial Magistrate-II,
Bhadohi, Gyanpur in Case Crime No. 0125
of 2016, Case No. 5673 of 2016 (State Vs.
Tadaknath and others), under sections 302,
427, 447 of Indian Penal Code, Police
Station Koirauna, District Bhadohi is
hereby set aside.

10. However, the learned Magistrate
is at liberty to consider the matter to take
788 INDIAN LAW REPORTS ALLAHABAD SERIES
cognizance of other offence against the
accused at the time of framing of charges.

11. With the aforesaid direction the
application is, accordingly, allowed. There
shall be no order as to costs.
----------
(2023) 3 ILRA 788
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Application u/s 482 No. 41885 of 2022

Prashant Jaiswal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sudarshan Singh, Sri Vinay Kumar

Counsel for the Opp. Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973-Sections 173(5), 175(6) & 207Documents submitted by Investigating OfficerAccused entitled to be supplied clone copyExcept where document is voluminous under
Section 207 proviso-Withholding of documents
from
accused-Permissible
only
in
limited
circumstances
like
privacy
concerns
of
victim/witness-Court must balance rights and
conduct
proper
inquiry
before
denying
documents.
Criminal Law - Criminal Procedure Code,
1973-Section 327-In-camera trial-Does not
prohibit supplying documents to accused for
defending himself-Court can restrain publication
outside
court
proceedings-Supplying
documents/material
to
accused-Essential
component of right to fair trial -Order denying
documents-Must examine material, conduct
inquiry, hear parties and pass reasoned order
balancing
concerns-Mere
apprehensions
insufficient to curtail supply of documents-order
set aside.

Application disposed. (E-9)

List of Cases cited:

1. P. GopalKrishnan @ Dileep Vs St. of Kerala &
anr., (2020) 9 SCC 161

2. Shamsher Singh Verma Vs St. of Har., (2016)
15 SCC 485

3. Manu Sharma Vs State (2010) 6 SCC 1

4. V.K. Sasikala Vs State, (2012) 9 SCC 771
(Delivered by Hon'ble Saumitra Dayal
Singh, J.)

1. Heard Shri Sudarshan Singh,
learned counsel for the applicant and
learned A.G.A. for the State.

2. Challenge has been raised to the
order dated 21.11.2022 passed by the
learned court below on Paper No. 10-Kha
in Session Trial No. 699 of 2022 (State Vs.
Prashant Jaiswal), arising out of Case
Crime No. 54 of 2021, under Sections -
376, 323, 504, 506 I.P.C. By that order, the
learned court below has rejected the
application moved by the applicant/accused
person. It has thus refused to make
available to the applicant a clone copy of
the data available on a pen drive submitted
by the Investigating Officer as part of the
case diary.

3. Submission of learned counsel for
the applicant is, the clone copy of the pen
drive is necessary to be provided to the
applicant to allow him a fair opportunity to
confront the prosecution witness with
certain parts thereof. Inasmuch as the data
on that pen drive is not material referable to
Section 173 (6) of the Cr.P.C., rather, it